Legal Ethics Opinion No. 1433
Confidences and Secrets: Lawyer as Witness To Defend Himself
Against Former Client's Accusation of Criminal Conduct
You have presented a hypothetical situation in which the
defendant in a murder-for-hire case has made statements to an FBI
agent that his former attorney was responsible for the killing.
The former attorney is willing to testify for the Commonwealth if
such testimony is not prohibited by the Virginia Code of
Professional Responsibility.
You have asked the committee to opine whether, under the facts of
the inquiry, the accusations by the former client will permit the
attorney to testify about, and disclose, client confidences.
The appropriate and controlling Disciplinary Rule related to your
inquiry is DR 4-101(C)(4) which states that a lawyer may reveal
confidences or secrets necessary to defend himself or his
employees or associates against an accusation of wrongful
conduct.
The committee has previously opined, in LEO #488, that it would
be improper for an attorney to disclose confidential information
gained from a client, even though that information would
exonerate another individual and even though the attorney no
longer represents the client. The committee based its decision,
however, on DR 4-101(B), and there was no accusation of wrongful
conduct against the former attorney in that instance. As to the
propriety of an attorney to testify as to confidential
information provided by his client, see also LEOs #334, 364, 439,
645, 787, 967.
Under the facts you have presented, the committee opines that the
former attorney may disclose to the commonwealth's attorney or
the court hearing the matter confidences gained from the
attorney-client relationship, since the defendant has made
statements to the FBI agent which would tend to incriminate the
former attorney. Disclosure should be made only to the extent
necessary to rebut any accusation by the former client of the
attorney's wrongful conduct or involvement in the alleged
murder-for-hire. The committee believes that confidences may be
revealed by the former attorney with or without an indictment
from the court or tribunal. The committee suggests, however,
that the former attorney may wish to consider seeking a judicial
ruling in limine on the propriety of disclosure under the
circumstances. See New York City Bar Legal Ethics Opinion
#1986-7 (12/19/86), ABA/BNA Law. Man. on Prof. Conduct, 901:6403.
Committee Opinion
October 21, 1991